Patents for Processing Teff Grain Invalidated

Every ethnic group has its own food traditions. Sometimes there is overlap and sometimes the cuisine is very different. We’ve recently posted about Palestinian claims of Israeli approbation of Palestinian foodstuffs, particularly hummus, tehina, falafel and pita bread, and expressed some skepticism that these foods are fairly described as Palestinian rather than generic Middle Eastern, and also noted that over a million Jews immigrated to Israel from the Arab world post 1948, bringing their traditional foods with them.

Woman making Injera – photo by Charlie Fleurene

On November 21, 1984 Israel began Operation Moses, a seven-week clandestine mission to bring more than 8,000 Ethiopian Jews to Israel. Today, Israel’s Ethiopian community boasts over 140,000 members who continue to play important roles in all facets of Israeli society. Ethiopian cuisine and their traditional eating customs are very different from those of Ashkenazic Jews whose foods are familiar to those that shop in New York delis.

Ethiopians make a sour, spongy flat bread that is called injera, made from Teff, an ancient grain. One of the earliest Ethiopian immigrants to Israel is a neighbor of mine, who is a diplomat working for Israel’s Foreign Ministry. A few years ago, he experimented with growing Teff in fields by our village.

Recently, Ethiopia successfully won a court case in the Dutch Court of Hague allowing it to legally import Teff flour into the Netherlands.

In 2014 Ancientgrain obtained a couple of patents (NL 977 and NL 978). for flour mixtures of Teff, dough variants made from them and food products and related methods.

Texture of Injera, Lukasz Nowak

Ancientgrain subsequently instituted an action against Bakels for patent infringement. It alleged that by offering Teff bread flour mix, Bakels infringed its patents, and sued for damages for patent infringement, compensation of €150,000 and actual legal costs. In its defense, Bakels argued that the claims related to the ripening characteristic, preferred ranges and the mixing of Teff with flour of another grain and that it could not be liable for patent infringement as the patents were invalid due to lack of novelty, or at least inventiveness, and Bakels accused Ancientgrain of acting unlawfully because it knew or ought to have known that its patents would not stand up in court, and counter-sued for the cost of the litigation, attorneys’ fees of €145,250.24, damages due to requiring a bank guarantee and punitive damages for the baseless charges.

On 21st November 2018 in re Ancientgrain BV vs. Bakels Senior NV, the Court of the Hague ruled that there was no infringement of the Dutch patents for processing Teff flour because the patents are invalid due to lacking an inventive step (approximately equivalent to the US 103 requirement of non-obviousness.

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